(EXHIBIT 10.47)
THIRD AMENDMENT TO
CREDIT DOCUMENTS
This Third Amendment to Credit Documents ("Amendment") is made as of
December 22, 1995 by and between Newmarket Capital Group, L.P. (the "Lender"),
Dayton Way Pictures II, Inc. (the "Borrower") and Xxxxxxx-Xxxxx International, a
division of the Xxxxxxx-Xxxxx Company ("KL").
R E C I T A L S
Reference is hereby made to the following documents and agreements in
connection with that certain motion picture presently entitled "THE NESTING"
(the "Picture"):
A. Borrower and Lender entered into that certain Loan Agreement dated as
of May 24, 1995 as amended by that certain First Amendment to Loan Agreement
dated as of June 14, 1995 and that certain Second Amendment to Loan Agreement
dated as of September 29, 1995, (collectively, the "Loan Agreement") relating to
the Picture; and
B. The other Credit Documents, including without limitation, that certain
Note, that certain Security Agreement, that certain Interparty Agreement and
that certain KL Guaranty, as each of such terms is defined in the Loan
Agreement, together with all documents and agreements entered into in connection
with each of the foregoing.
WHEREAS, Borrower and Lender now wish to amend the Loan Agreement, the
Interparty Agreement and the other Credit Documents and Lender wishes to repay
the KL L/C;
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Borrower and Lender hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein are
used herein as defined in the Loan Agreement.
2. WAIVER. Lender agrees, upon Borrower's fulfillment of the conditions
precedent set forth on the attached Exhibit A, to waive any Event of Default
which has occurred and is continuing as of the date hereof (i) under Section
8.11 (a) of the Loan Agreement as a result of Debtor's failure to deliver to
Lender on or before November 30, 1995 sufficient Distribution Agreements
together with Distributor's Acceptances related thereto with an Acceptable Pre-
Sale Value of at least $400,000 and (ii) under Section 8.11 (b) of the Loan
Agreement as a result of Debtor's failure to deliver to Lender on or before
December 15, 1995 sufficient Distribution Agreements together with Distributor's
Acceptances related thereto with an aggregate Acceptable Pre-Sale Value together
with the face amount of the KL L/C of at least $960,000.
This waiver shall be effective only for the specific Event of Default(s)
specified above, and in no event shall this waiver be deemed to be a waiver of
(a) enforcement of the Lender's rights with respect to any other Event(s) of
Default now existing or hereafter arising or (b)
Debtor's compliance with any other covenants or provisions of the Credit
Documents.
Nothing contained herein nor any communications between the Lender and the
Debtor shall be a waiver of any rights or remedies the Lender has or may have
against the Debtor, except as specifically provided herein. The Lender hereby
reserves and preserves all of its rights and remedies against the Debtor under
the Loan Agreement, the other Credit Documents, and applicable law.
3. AMENDMENTS.
(a) The parties hereto agree that the Loan Agreement is hereby amended as
follows:
(i) SECTION 2.2. Section 2.2(b) is hereby amended by adding the
following new subsection immediately following Section 2.2(b)(iii): "(iv)
reimbursement to Lender of $200,000 of amounts owing to Lender under that
certain Loan Agreement dated as of July 31, 1995 between Lender and Dayton Way
Pictures IV in connection with the motion picture "THE WHOLE WIDE WORLD" ("Whole
Wide World Loan")".
(ii) SECTION 2.3. Section 2.3 is hereby amended by deleting the
reference to "February 28, 1996" in the seventh line thereof and replacing it
with "March 31, 1996".
(iii) SECTION 2.4(a). Section 2.4(a) is hereby amended by adding
the following at the end of such subsection: "Notwithstanding the foregoing,
effective February 1, 1996, the Loans shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate equal to the sum of three percent (3.0%)
per annum plus the "Prime Rate.""
(iv) SECTION 8.11. Section 8.11 of the Loan Agreement is hereby
amended by deleting the current text in its entirety and replacing it with the
following: "Borrower and/or KL fails to deliver to Lender on or before January
31, 1996 fully executed Distribution Agreements, Distributors' Acceptances and
letters of credit, if applicable, all in form and substance acceptable to Lender
and guaranteed pursuant to the Completion Guaranty, for all sales of
distribution rights in connection with the Picture made as of December 22, 1995
as set forth on Schedule I to the Third Amendment."
(b) The parties hereto agree that the Interparty Agreement is hereby
amended as follows:
(i) SECTION 5(b). Section 5(b) of the Interparty Agreement is hereby
amended by adding the following at the end of the paragraph: "Notwithstanding
the foregoing, upon Borrower's and/or KL's fulfillment of the conditions set
forth on Exhibit A attached to the Third Amendment to Credit Documents relating
hereto, Lender shall repay the entire amount of the KL Investment by advances
under the Loan Agreement, PROVIDED that $200,000 of such repayment shall be used
solely to reimburse Lender for amounts owing under the Whole Wide World Loan.
The KL Guaranty shall be
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released in full if and when the Acceptable Pre-Sale Value of all Distribution
Agreements delivered to Lender are equal to or greater than the amount of the
Production Facility."
The Credit Documents and any and all documents and agreements entered into
on connection with any of the Credit Documents shall be deemed amended hereby to
the extent (and only to the extent) necessary to conform them to the terms
contained herein; except as expressly herein agreed, all of the foregoing
documents and agreements shall remain unchanged and in full force and effect
except that each reference in such documents and agreements to the Loan
Agreement, the Security Agreement, the Note, the Interparty Agreement the KL
Guaranty any other Credit Document, or any other document or agreement entered
into in connection with any of the foregoing shall be deemed to refer to such
document or agreement, respectively, as amended hereby.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants that all of the representations and warranties set forth in the Loan
Agreement are true and correct and that no Event of Default under the Loan
Agreement has occurred or is continuing as of the date hereof except as
specifically waived herein.
5. EFFECTIVE DATE. This Amendment shall become effective upon delivery
to the Lender of a fully executed copy of this Amendment. Except as specifically
set forth herein, the parties hereto agree and confirm that the Loan Agreement
and the other documents related thereto remain in full force and effect as
executed except that each reference in the Credit Documents to the Loan
Agreement shall be deemed to refer to the Loan Agreement as amended hereby.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California. No amendment hereto shall
be effective unless in writing and executed by the parties hereto.
7. COUNTERPARTS. This Amendment may be executed in counterparts all of
which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment is duly executed by an authorized
signatory of each of the parties hereto as of the date first above written.
DAYTON WAY PICTURES II, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name:
Title:
NEWMARKET CAPITAL GROUP, L.P.
By: BFB,LLC
Its: Managing General Partner
By: /s/ Will Tyrer
-------------------------------------
Name:
Title: President
XXXXXXX-XXXXX INTERNATIONAL, a division of the
Xxxxxxx-Xxxxx Company
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
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EXHIBIT "A"
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1. Delivery to Lender by Borrower and/or KL of the following:
(a) With respect to Germany, executed Distributor's Acceptance, in form and
substance acceptable to Lender, guaranteed pursuant to the Completion Guaranty,
signed by all parties thereto and providing for a final payment no later than
delivery of the Initial Delivery Materials (as defined in the Distributor's
Acceptance).
(b) With respect to Spain, executed Distribution Agreement and
Distributor's Acceptance, in form and substance acceptable to Lender, guaranteed
pursuant to the Completion Guaranty and signed by all parties thereto and
providing for a final payment no later than delivery of the Initial Delivery
Materials (as defined in the Distributor's Acceptance).
Notwithstanding Section 5(b) of the Interparty Agreement, the amount of the
KL Investment which Lender is obligated to repay shall be reduced by the amount
of the minimum guarantee for any territory listed in paragraphs (a) and (b)
above for which Borrower and/or KL does not deliver all items listed in such
paragraph.
2. Delivery to Lender of an executed copy of that certain side letter of even
date herewith among, INTER ALIA, Lender, Borrower and KL relating to the
Collection Account and cross-collateralization.
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